Hayes v. Long Beach Banana Distributors, Inc.

• Decision Date: 14 March 1969
• Citation: 76 Cal.Rptr. 260,270 Cal.App.2d 658
• Court: California Court of Appeals Court of Appeals
• Parties: Lucresia HAYES, Plaintiff and Respondent, v. LONG BEACH BANANA DISTRIBUTORS, INC., and Leo Mancuso, Defendants and Appellants. Civ. 33042.

Page 260

76 Cal.Rptr. 260

270 Cal.App.2d 658

Lucresia HAYES, Plaintiff and Respondent, v. LONG BEACH BANANA DISTRIBUTORS, INC., and Leo Mancuso, Defendants and Appellants.

Civ. 33042.

Court of Appeal, Second District, Division 1, California.

March 14, 1969.

Rehearing Denied April 14, 1969.

Hearing Denied May 8, 1969.

Murchison, Cumming, Bake & Velpmen, Arthur W. Meifert and Ronald R. McQuoid, Los Angeles, for defendants and appellants.

Grisham & Cawyer and Jack E. Grisham, Long Beach, for plaintiff and respondent.

FOURT, Associate Justice.

This is an appeal from an order granting plaintiff a new trial after a jury verdict in favor of plaintiff.

Plaintiff brought the action for damages for personal injuries. She alleged among other things that at the intersection of certain streets in Long Beach defendant Mancuso operated a truck as an employee of Long Beach Banana Distributors, Inc. (sometimes referred to as Banana) and struck the rear of plaintiff's car while she was stopped at a stop sign thereby causing some minor property damage and serious personal injuries. In a jury trial a verdict for $1,000 was returned in favor of plaintiff and against the defendants. Within due time a notice of intention to move for a new trial was filed. The court heard the motion and on October 10, 1967, made an order. ¹

Defendants within the required time appealed from the order granting a new trial.

A re sume of some of the facts is as follows: it is uncontradicted that the Banana truck did collide with the rear of plaintiff's car on May 29, 1964, at the intersection mentioned in the complaint. There was evidence that the impact was relatively light but that plaintiff did soon thereafter experience considerable pain and discomfort in her neck and shoulder area and consulted her physician and received medical attention for her injuries. Following a period of extensive medical care and treatment by her family physician, her care was turned over to an ortheopedic specialist. The latter testified that plaintiff had a condition medically identified as spondylolisthesis. The evidence showed that plaintiff had done hard domestic work for years without complaint and apparently had enjoyed excellent health. Her doctor (the specialist) testified that plaintiff, because of the continuing discomfort, muscle spasms in the neck, etc., was unable to do housework, that she could not do the work without surgery and that he did not know that she could do the work even if surgery were performed and that in his opinion 'the accident triggered the back disability.' It was testified that the medical expenses were about $2,650, that the needed surgery would be about $2,500. There was evidence that since July 1965 plaintiff has been totally disabled from doing any type of domestic work and almost totally disabled from most forms of ordinary activity. There was evidence which would support a wage loss of about $4,200 even assuming that she had the required and recommended operation. She had a life expectancy of 19.4 years.

Appellants assert that the order granting the new trial is fatally defective because the judge failed to state his reason therefor, that it was an abuse of discretion to grant the motion for a new trial where there was sufficient evidence to support the verdict of the jury and that it was an abuse of discretion to grant the motion on the issue of damages only where the evidence on the issue of liability was not overwhelmingly in plaintiff's favor. The only issue of any real consequence is whether the court stated sufficiently its reason for granting the motion and ordering the new trial. We are persuaded that the order is sufficient under the circumstances.

Section 657 of the Code of Civil Procedure provided as follows at the time the motion was acted upon. ² On several occasions courts have had occasion to interpret the section as amended in 1965. (See Mercer v. Perez, 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315; Treber v. Superior Court, etc., 68 Cal.2d 128, 65 Cal.Rptr. 330, 436 P.2d 330; Kincaid v. Sears, Roebuck & Co., 259 Cal.App.2d 733, 66 Cal.Rptr. 915; Funderburk v. General Tel. Co., 262 Cal.App.2d 869, 69 Cal.Rptr. 275; Kramer v. Boynton, 258 Cal.App.2d 171, 65 Cal.Rptr. 669; Brooks v. Harootunian, 261 Cal.App.2d 680, 68 Cal.Rptr. 374; Tagney v. Hoy, 260 Cal.App.2d 372, 67 Cal.Rptr. 261; Torres v. Southern Pacific Co., 260 Cal.App.2d 757, 67 Cal.Rptr. 428.)

The grounds for the granting of the motion in question was 'insufficiency of evidence' and the reason was that 'the verdict (is) in an inadequate amount.'

Mercer, supra, stated that section 657 of the Code of Civil Procedure should be given a reasonable and practical construction and that it is sufficient that the stated reason (for granting the motion) be 'concise but clear' and that no hard and fast rule can be laid down as to the content of such reason or reasons and that such will necessarily vary according to the circumstances of each case. As stated in Kincaid, supra, at page 775, 66 Cal.Rptr. at page 918, '* * * the trial judge is not necessarily required to cite page and line of the record, or discuss the testimony of particular witnesses, But instead he need only point out the particular 'deficiency' of the prevailing party's case which convinces him the judgment should not stand. This accomplishes the purpose of the statute by enablihg a reviewing court to 'determine if there is a substantial basis for finding such a deficiency. '' (Emphasis added.) The judge in this case granted the motion only after weighing the evidence of the entire record, including the reasonable inferences to be drawn therefrom. As stated in Kincaid, supra, page 776, 66 Cal.Rptr. page 919:

'Manifestly it would be unreasonable to infer a statutory intent that the court's stated reasons embrace a discretion of the weight to be given, and the inferences to be drawn from each item of evidence supporting, or impeaching, the judgment. This, we believe, is why the court in Mercer v. Perez, supra, 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315, stated 'we hold that if the ground relied upon is 'insufficiency of the evidence' the judge must Briefly recite the respects in which he finds the evidence to be legally inadequate.' (Italics added.)' Here the court stated that the verdict was in an 'inadequate amount' and we believe that this complies with the requirements of the section in question. The specification is certainly concise and clear. The judge addressed himself to what he deemed the deficiency in the evidence and this court is enabled to determine whether there is a substantial basis for the finding of such a deficiency.

We understand that an order must be given such a construction as will support it if this may be done within reason and the accepted rules of construction.

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